UNITED STATES v. FARLEY

PER CURIAM.

Upon the remand of the case pursuant to our opinion of November 9, 1956, 238 F.2d 575, the court below assigned counsel to assist the defendant-appellant in the preparation and prosecution of a motion for leave to appeal in forma pauperis and, after consideration of the motion thus submitted, denied the same and certified that the appeal was not taken in good faith.

The appellant now, through counsel appointed as above stated, moves for leave to appeal in forma pauperis and for an extension of time to file the record, requesting a hearing before the court en banc. The hearing en banc is denied. Chief Judge Clark is added to the panel to which the motion has been referred, in the place of Judge Frank who was on the panel to which the prior motion was referred, and who has since died.

In accordance with the holding of this court in United States v. Farley, supra, and United States v. Johnson, 2 Cir., 238 F.2d 565, the motion for leave to appeal in forma pauperis is denied and the appellant's court-assigned counsel, with the thanks of the court for services hitherto furnished, is discharged from official obligation to participate further in the appeal, and the time for filing the appeal is extended to March 20, 1957 at which time the appeal shall without further order be dismissed unless the record shall have been sooner filed.

The time for rehearing having expired, we treat the motion as one for leave to file the motion. As such, it is granted and we will dispose of the motion, as though timely made, on the merits.

We see nothing in the opinion in Johnson v. United States, which was handed down by the Supreme Court on March 4, 1957, 77 S.Ct. 550, which requires any modification of our Per Curiam order of February 21, 1957. The trial court had assigned as counsel to the appellant, for his assistance in prosecuting his petition for leave to appeal in forma pauperis both in the trial court and before us, able counsel who had theretofore represented the appellant at his trial. On the showing made below and on the appellant's motion of January 9, 1957, before us, we find no just cause to disturb the certificate of the trial judge that the appeal is not taken in good faith.

The pending motion is denied, and the time limited in our order of February 21, 1957 for filing the appeal having elapsed, the appeal is hereby dismissed.